Shane Thionnet v Gregory Ross Stephenson

SHANE THIONNET v GREGORY ROSS STEPHENSON [2001] ACTSC 132 (21 December 2001)

CATCHWORDS

CRIMINAL LAW – sentence – whether manifestly excessive – sentence indication -
guilty plea after indication but before completion of committal hearing - great disparity between indication and sentence imposed – authorities considered – appeal upheld – sentence imposed set aside.

CRIMINAL LAW – sentence – whether sentencing magistrate, contrary to principle in De Simoni, considered aggravating circumstances which would have warranted conviction on a more serious charge – she did – appeal upheld. 

CRIMINAL LAW – sentence – sentence indication – indication for plea of not guilty significantly more severe than that for guilty plea – improper inducement to plead guilty rather than discount for early plea – process of sentence indication inappropriate – appeal upheld.

CRIMINAL LAW – sentence – sentence indication scheme – criticisms.

Crimes Act 1900, ss 102(2), 347
Criminal Procedure Act 1986 (NSW)
Workplace Health and Safety Act 1995 (Tas)

R v De Simoni (1981) 147 CLR 383
R v Thompson (2000) 49 NSWLR 383
R v Marshall [1981] VR 725
Keily v R (1989) 11 Cr App R (S) 273
Johnson and Lorraine v R (1990) 12 Cr App R (S) 219
R v Warfield (1994) 34 NSWLR 200
Plastic Fabrications Pty Ltd v The Crown [1999] TASSC 95 (13 September 1999)
R v Hollis (unreported, NSWCCA, No. 60564 of 1994, 3 March 1995, BC 9504274)

No. SCA 82 of 2000

Judge:          Higgins J
Supreme Court of the ACT
Date:           21 December 2001

IN THE SUPREME COURT OF THE     )
  )          No. SCA 82 of 2000
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SHANE THIONNET

Appellant

AND: GREGORY ROSS STEPHENSON

Respondent

ORDER

Judge:  Higgins J
Date:  21 December 2001
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The sentence imposed be set aside.  In lieu thereof, a conviction be recorded and the appellant be released upon entering a recognizance, self in the sum of $500, to be of good behaviour for a period of 6 months from today.  It is to be a further condition that he accept the supervision of the Director of ACT Corrective Services or such nominee as the Director may from time to time appoint and to obey any reasonable directions.

1. This is an appeal from a decision of Magistrate Doogan imposing a sentence of three months imprisonment upon the appellant who pleaded guilty to a charge that he:

“ . . . on 21 December 1999 did assault Lefran Ruby Jard and thereby then occasioned to her actual bodily harm.”

1. The facts relied upon by the prosecution, without objection, were that, at about 9:50am on Tuesday 21 December 1999, Ms Jard was at home.  She received a phone call from a Ms Rebecca Baxter.  They had a heated argument.

1. Shortly thereafter, she saw Ms Baxter and a male person, later identified as the appellant, approaching her house.

1. There was a loud knocking on the front door.  Ms Jard armed herself with a baseball bat…